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The Federal Aviation Administration and Professional Air Traffic Controllers Organization&nbsp;

[ v02 p290 ] 02:0290(35)AR
The decision of the Authority follows:

2 FLRA No. 35
THE FEDERAL AVIATION ADMINISTRATION
and
PROFESSIONAL AIR TRAFFIC CONTROLLERS
ORGANIZATION
FLRC No. 78A-154
DECISION ON APPEAL FROM ARBITRATION AWARD
BACKGROUND OF CASE
ACCORDING TO THE ARBITRATOR, THE GRIEVANT IN THIS CASE IS AN AIR
TRAFFIC CONTROL SPECIALIST AT THE FEDERAL AVIATION ADMINISTRATION'S
JACKSONVILLE CENTER FACILITY (THE ACTIVITY). THIS GRIEVANCE AROSE WHEN
THE GRIEVANT RETURNED TO WORK AFTER AN ABSENCE DURING WHICH HE HAD
VOLUNTARILY UNDERGONE MEDICAL TREATMENT. WHEN THE GRIEVANT RETURNED TO
WORK, THE ACTIVITY REASSIGNED HIM TEMPORARILY TO AN ADMINISTRATIVE
POSITION IN WHICH HE RECEIVED LESS PAY THAN HE NORMALLY RECEIVED WHEN
PERFORMING HIS REGULAR DUTIES MONITORING AIR TRAFFIC. THE ACTIVITY
DIRECTED THE GRIEVANT TO UNDERGO PSYCHOLOGICAL EVALUATION BY FAA
PHYSICIANS TO DETERMINE WHETHER HE COULD BE REASSIGNED AS A CONTROLLER.
THE GRIEVANT OBJECTED TO THE ACTIVITY'S REQUIREMENT THAT HE BE EXAMINED
BY FAA PHYSICIANS, BUT THE ACTIVITY REFUSED TO AGREE TO PERMIT THE
EXAMINATION TO BE CONDUCTED BY A PRIVATE PHYSICIAN. THE GRIEVANT
THEREFORE UNWILLINGLY SUBMITTED TO EXAMINATIONS BY FAA PHYSICIANS, WAS
CLEARED FOR DUTY AND RETURNED TO WORK AS A CONTROLLER.
THE UNION FILED A GRIEVANCE ON BEHALF OF THE GRIEVANT, CONTENDING
THAT THE PROCEDURES USED BY THE ACTIVITY BEFORE RETURNING THE GRIEVANT
TO HIS CONTROLLER DUTIES VIOLATED THE FEDERAL PERSONNEL MANUAL (FPM) AND
THE PARTIES' NEGOTIATED AGREEMENT. THE MATTER ULTIMATELY WAS SUBMITTED
TO ARBITRATION.
THE ARBITRATOR'S AWARD
THE ARBITRATOR STATED THE ISSUE BEFORE HIM TO BE:
DID THE FAA VIOLATE THE AGREEMENT IN DENYING THE GRIEVANT PROCEDURAL
PROTECTIONS GUARANTEED
ALL FEDERAL EMPLOYEES, AS SET FORTH BY THE FEDERAL PERSONNEL MANUAL
IN CONNECTION WITH A
PSYCHIATRIC EXAMINATION HE WAS REQUIRED TO UNDERGO BEFORE RETURNING
TO ACTIVE RADAR CONTROL
DUTY?
THE ARBITRATOR SUSTAINED THE GRIEVANCE, AND ISSUED THE FOLLOWING
AWARD:
1. THE FAA MAY NOT FORMULATE A POLICY WHICH DENIES A PARTICULAR
CLASS OF FEDERAL EMPLOYEES
THE DUE PROCESS PROCEDURES GUARANTEED BY THE FEDERAL PERSONNEL MANUAL
AS SET FORTH BY THE
CIVIL SERVICE COMMISSION. IN SO DOING, THE RELIEF REQUESTED BY PATCO
(POINTS NO. 2 AND 3
/1/ AS SET FORTH IN THE GRIEVANCE) ARE GRANTED.
2. YOUR ARBITRATOR IS WITHOUT THE AUTHORITY TO EXPRESSLY GRANT THAT
PORTION OF THE RELIEF
REQUESTED . . . REQUIRING THE FAA TO PROMULGATE CERTAIN REGIONAL
ORDERS.
3. THE FAA IS HEREBY DIRECTED TO TAKE THE ACTION NECESSARY TO MAKE
CERTAIN THAT THE
GRIEVANT'S PERSONNEL RECORD REFLECTS THAT THE INSTANT GRIEVANCE WAS
DEEMED MERITORIOUS AND
THAT HE NOT BE PENALIZED IN ANY WAY FOR HIS ACTIONS TAKEN THEREIN.
AGENCY'S APPEAL
THE AGENCY FILED A PETITION FOR REVIEW OF THE ARBITRATOR'S AWARD WITH
THE FEDERAL LABOR RELATIONS COUNCIL. THIS CASE WAS PENDING BEFORE THE
COUNCIL ON DECEMBER 31, 1978. IN ACCORDANCE WITH SECTION 2400.5 OF THE
TRANSITION RULES OF THE FEDERAL LABOR RELATIONS AUTHORITY (44 FED. REG.
44741) AND SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (92 STAT. 1215), THE RULES OF PROCEDURE OF THE
COUNCIL, 5 C.F.R. PART 2411 (1978), REMAIN OPERATIVE WITH RESPECT TO THE
PRESENT CASE, EXCEPT THAT THE WORD "AUTHORITY" IS SUBSTITUTED, AS
APPROPRIATE, WHEREVER THE WORD "COUNCIL" APPEARS IN SUCH RULES.
PURSUANT TO SECTION 2411.32 OF THE RULES AS SO AMENDED, THE AUTHORITY
ACCEPTED THE AGENCY'S PETITION FOR REVIEW WHICH TOOK EXCEPTION TO THE
AWARD ON THE GROUND THAT THE AWARD VIOLATED APPROPRIATE REGULATION.
ALSO, PURSUANT TO SECTION 2411.47(F) OF THE AMENDED RULES, THE AUTHORITY
GRANTED THE AGENCY'S REQUEST FOR A STAY OF THE AWARD PENDING
DETERMINATION OF THE APPEAL.
OPINION
SECTION 2411.37(A) OF THE AMENDED RULES OF PROCEDURE PROVIDES:
(A) AN AWARD OF AN ARBITRATOR SHALL BE MODIFIED, SET ASIDE IN WHOLE
OR IN PART, OR REMANDED ONLY ON GROUNDS THAT THE AWARD VIOLATES
APPLICABLE LAW, APPROPRIATE REGULATION, OR THE ORDER, OR OTHER GROUNDS
SIMILAR TO THOSE APPLIED BY THE COURTS IN PRIVATE SECTOR
LABOR-MANAGEMENT RELATIONS.
AS PREVIOUSLY NOTED, THE AUTHORITY ACCEPTED THE AGENCY'S PETITION FOR
REVIEW WHICH TOOK EXCEPTION TO THE AWARD ON THE GROUND THAT THE AWARD
VIOLATED APPROPRIATE REGULATION. BECAUSE THIS CASE INVOLVED A MATTER
FOR WHICH THE CIVIL SERVICE COMMISSION WAS RESPONSIBLE FOR PRESCRIBING
REGULATIONS, AND SINCE UNDER SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224) THIS APPEAL MUST BE RESOLVED AS IF THE CIVIL
SERVICE REFORM ACT HAD NOT BEEN ENACTED, THE AUTHORITY REQUESTED FROM
THE OFFICE OF PERSONNEL MANAGEMENT (THE SUCCESSOR AGENCY TO THE CIVIL
SERVICE COMMISSION WITH RESPECT TO THE MATTERS INVOLVED HEREIN) AN
INTERPRETATION OF PERTINENT CIVIL SERVICE COMMISSION REGULATIONS AS THEY
PERTAIN TO THE ARBITRATOR'S AWARD IN THIS CASE. THE RESPONSE OF THE
OFFICE OF PERSONNEL MANAGEMENT IS SET FORTH BELOW IN RELEVANT PART:
THE GRIEVANT IN THIS CASE, AN AIR TRAFFIC CONTROL SPECIALIST, ALLEGED
THAT THE PROCEDURES UTILIZED BY MANAGEMENT FOR AN EXAMINATION TO
DETERMINE HIS FITNESS-FOR-DUTY WERE IN VIOLATION OF CERTAIN CIVIL
SERVICE REGULATIONS, SPECIFICALLY FEDERAL PERSONNEL MANUAL /2/ CHAPTER
339, SUBCHAPTER 1-3C, AND SUPPLEMENT 831-1, SUBCHAPTER 10-10.
THE FIRST PROVISION, SECTION 1-3C OF CHAPTER 339 (HEREAFTER REFERRED
TO AS CHAPTER 339), STATES THAT NORMALLY A FEDERAL MEDICAL OFFICER
SHOULD CONDUCT A FITNESS-FOR-DUTY EXAMINATION. IF, HOWEVER, AN EMPLOYEE
REFUSES TO BE EXAMINED BY A FEDERAL MEDICAL OFFICER OR OTHER AGENCY
DESIGNATED PHYSICIAN, THE EXAMINATION MAY BE CONDUCTED BY A PHYSICIAN OF
THE EMPLOYEE'S CHOICE, SUBJECT TO THE FOLLOWING CONDITIONS: (1) THE
AGENCY DETERMINES THAT THE MEDICAL EXAMINATION IS NECESSARY PRIMARILY
FOR THE BENEFIT OF THE GOVERNMENT; (2) THE PHYSICIAN IS BOARD-CERTIFIED
IN THE APPROPRIATE MEDICAL SPECIALTY, AND ACCEPTABLE TO THE AGENCY; AND
(3) THE PHYSICIAN SUBMITS A COMPLETE REPORT OF THE EXAMINATION DIRECTLY
TO THE AGENCY.
SUBCHAPTER 10-10 OF FPM SUPPLEMENT 831-1, OUTLINES THE PROCEDURES AN
AGENCY MUST FOLLOW WHEN FILING A DISABILITY RETIREMENT APPLICATION ON
BEHALF OF AN EMPLOYEE WHO HAS FIVE OR MORE YEARS OF SERVICE. THESE
PROCEDURES INCLUDE A REQUIREMENT FOR THE EMPLOYEE TO SUBMIT TO A
FITNESS-FOR-DUTY EXAMINATION AFTER RECEIPT OF A NOTICE WHICH INFORMS HIM
OR HER OF THE EXAMINATION AND PROVIDES INSTRUCTIONS ON HOW TO
PARTICIPATE IN THE SELECTION OF A MEDICAL EXAMINER IF THE EMPLOYEE
DESIRES TO DO SO.
IN THE INSTANT CASE, THE GRIEVANT WAS NOT ORDERED TO TAKE A
FITNESS-FOR-DUTY EXAMINATION BY THE FAA, BUT RATHER A "RETURN-TO-DUTY"
EXAMINATION UNDER THE AGENCY'S HEALTH PROGRAM.
THE ARBITRATOR FOUND THAT THE FAA HAS THE AUTHORITY UNDER CSC
HANDBOOK X-118 TO CONDUCT "RETURN-TO-DUTY" EXAMINATIONS IN ORDER TO
DETERMINE THE MEDICAL QUALIFICATIONS OF A CONTROLLER FOLLOWING A LONG
ILLNESS OR INJURY. HE CONCLUDED FURTHER, HOWEVER, THAT NO PERMANENT
ACTION COULD BE TAKEN ON THE MEDICAL STATUS OF A CONTROLLER WITHOUT THE
PERFORMANCE OF A FITNESS-FOR-DUTY EXAMINATION AS PROVIDED BY CHAPTER 339
OF THE FEDERAL PERSONNEL MANUAL.
SPECIFICALLY, THE ARBITRATOR ORDERED, IN PART:
1. THE FAA MAY NOT FORMULATE A POLICY WHICH DENIES A PARTICULAR
CLASS OF FEDERAL EMPLOYEES THE DUE PROCESS PROCEDURES GUARANTEED BY THE
FEDERAL PERSONNEL MANUAL AS SET FORTH BY THE CIVIL SERVICE COMMISSION.
IN SO DOING, THE RELIEF REQUESTED BY PATCO (POINTS NO. 2 AND 3 AS SET
FORTH IN THE GRIEVANCE) ARE GRANTED.
POINTS 2 AND 3 PROVIDED:
2. THAT THE FAA SOUTHERN REGION INFORM ME BY LETTER THAT WHATEVER
FITNESS FOR DUTY PHYSICALS AND/OR PSYCHOLOGICAL EVALUATIONS ARE TO BE
REQUIRED OF ANY BARGAINING UNIT MEMBER THAT THE PROVISIONS OF THE
FEDERAL PERSONNEL MANUAL, CHAPTER 339, SUBCHAPTER 4, PARAGRAPH 1-3C, AND
CHAPTER 831-1, SUBCHAPTER 10-10 OF THE FEDERAL PERSONNEL SUPPLEMENT
PREVAIL AND THAT ALL BARGAINING UNIT MEMBERS WILL BE ACCORDED THESE
RIGHTS.
3. THAT WHENEVER A BARGAINING UNIT MEMBER IS REQUIRED TO UNDERGO A
FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION THAT THEY WILL BE
ADVISED OF THEIR RIGHTS UNDER THE REGULATIONS OF THE FEDERAL PERSONNEL
MANUAL IN THE INITIAL LETTER THAT THEY RECEIVE ADVISING THEM THAT THEY
MUST UNDERGO A FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION.
THE QUESTION PRESENTED TO US IN THIS CASE IS WHETHER, AS THE FAA
ARGUES, THE AWARD VIOLATED THE FEDERAL PERSONNEL MANUAL IN THAT THE
ARBITRATOR MADE AN ARTIFICIAL DISTINCTION BETWEEN THE C-118 AUTHORITY
FOR THE AGENCY'S "RETURN TO DUTY" EXAMINATION, AND THE "FITNESS FOR
DUTY" EXAMINATION, DISCUSSED IN CHAPTER 339, AND THAT IT IS REDUNDANT TO
CONDUCT BOTH A "RETURN TO DUTY" EXAMINATION AND A "FITNESS FOR DUTY"
EXAMINATION BEFORE ANY PERMANENT ACTION CAN BE TAKEN AGAINST A
CONTROLLER.
THE QUESTION IN THIS CASE REQUIRES THE HARMONIZATION OF FAA AND
EMPLOYEES' RIGHTS WITH RESPECT TO "RETURN TO DUTY" AND "FITNESS FOR
DUTY" EXAMINATIONS. FAA IS AUTHORIZED, UNDER X-118 TO REQUIRE "RETURN
TO DUTY" EXAMINATIONS. SUCH EXAMINATIONS ARE USED WHEN AN EMPLOYEE
RETURNS VOLUNTARILY FROM A SERIOUS JOB-RELATED INJURY OR ILLNESS WHICH
HAS CAUSED DISABILITY FOR WORK OF MORE THAN FOUR DAYS OR THE NATURE OF
THE INJURY OR ILLNESS IS SUCH THAT IT MAY JEOPARDIZE AIR SAFETY. (PAGE
2 OF SEPTEMBER 23, 1978 LETTER FROM THOMAS A. TINSLEY TO WILLIAM B.
PEER.) THESE EXAMINATIONS APPLY ONLY TO AIR TRAFFIC CONTROL SPECIALISTS
AND ARE USED TO DETERMINE WHETHER AN EMPLOYEE IS PHYSICALLY OR MENTALLY
QUALIFIED FOR AIR TRAFFIC CONTROL DUTIES.
HOWEVER, FPM CHAPTER 339 AND SUPPLEMENT 831-1 APPLY TO SITUATIONS
PRECEDENT TO A POSSIBLE REMOVAL, DEMOTION, OR INVOLUNTARY RETIREMENT,
AND WERE MEANT TO APPLY TO ALL FEDERAL EMPLOYEES. (AT THIS POINT, IT
SHOULD BE NOTED THAT CHAPTER 339 DOES NOT, BY ITSELF, HAVE THE FORCE OF
REGULATION. IT IS GUIDANCE AND ADVISORY. HOWEVER, FPM SUPPLEMENT
752-1, S1-3A(5), WHICH DOES HAVE THE FORCE OF REGULATION, INCORPORATES
CHAPTER 339 BY REFERENCE. /3/ THUS, THE PROCEDURES CONTAINED IN CHAPTER
339 ARE MANDATORY, WHEN AN ADVERSE ACTION IS INVOLVED.) THEREFORE, IF
DURING THE CONDUCT OF A "RETURN TO DUTY" EXAMINATION THERE IS SUFFICIENT
REASON TO BELIEVE THAT A CONTROLLER IS PERMANENTLY DISABLED FOR THE
PERFORMANCE OF AIR TRAFFIC CONTROL DUTIES WHICH COULD RESULT IN HIS OR
HER REMOVAL, DEMOTION, OR INVOLUNTARY DISABILITY RETIREMENT, THE
EMPLOYEE MUST BE AFFORDED THE PROCEDURAL PROTECTIONS OF FPM CHAPTER 339
OR SUPPLEMENT 831-1. THESE PROTECTIONS INCLUDE THE RIGHT OF THE
EMPLOYEE TO SUBMIT THE NAMES OF BOARD-CERTIFIED PHYSICIANS WHOM HE OR
SHE HAS CHOSEN TO CONDUCT THE "FITNESS-FOR-DUTY" EXAMINATION.
WHILE EMPLOYEES MUST BE AFFORDED THEIR LEGAL AND PROCEDURAL RIGHTS
BEFORE THEY ARE REMOVED, DEMOTED, OR RETIRED FROM THE FEDERAL SERVICE,
THE FAA RETAINS THE AUTHORITY TO CONDUCT "RETURN TO DUTY" EXAMINATIONS
WHEN AN EMPLOYEE RETURNS FROM A SERIOUS INJURY OR ILLNESS WHICH HAS
CAUSED DISABILITY FOR WORK FOR MORE THAN FOUR DAYS OR THE NATURE OF THE
INJURY IS SUCH THAT IT MAY JEOPARDIZE AIR SAFETY. SUCH EXAMINATIONS
ENABLE FAA TO DETERMINE WHETHER AN EMPLOYEE IS SUFFICIENTLY RECOVERED TO
ENABLE HIM OR HER TO RETURN TO AIR TRAFFIC CONTROL DUTIES AND MAY
INDICATE A NEED TO TEMPORARILY REASSIGN THE CONTROLLER TO OTHER DUTIES
UNTIL HE OR SHE HAS RECOVERED SUFFICIENTLY TO BE RETURNED TO AIR TRAFFIC
CONTROL DUTIES. HOWEVER, THIS RIGHT TO REQUIRE A CONTROLLER TO SUBMIT A
"RETURN TO DUTY" EXAMINATION DOES NOT NEGATE THE FAA'S RESPONSIBILITY TO
PROVIDE EMPLOYEES WITH THEIR LEGAL AND REGULATORY RIGHTS IF REMOVAL,
DEMOTION OR INVOLUNTARY RETIREMENT MAY BE INVOLVED.
THE ARBITRATOR IN THE INSTANT CASE, HOWEVER, REASONED THAT BEFORE THE
FAA COULD TEMPORARILY ASSIGN THE GRIEVANT PENDING THE OUTCOME OF THE
"RETURN TO DUTY" EXAMINATION TO OTHER DUTIES WHICH CAUSED HIM TO LOSE
PAY, THE FAA WAS OBLIGATED TO GIVE THE EMPLOYEE A "FITNESS FOR DUTY"
EXAMINATION WITH ITS ATTENDANT PROTECTIONS. THE LOSS OF PAY REFERRED TO
CONCERNS NIGHT DIFFERENTIAL AND OVERTIME PAY. THEREFORE, IN THE INSTANT
CASE, THE EMPLOYEE'S RATE OF BASIC PAY DID NOT CHANGE DURING THE
TEMPORARY REASSIGNMENT. FPM SUPPLEMENT 752-1, S1-5A, MAKES IT CLEAR
THAT "BASIC PAY ORDINARILY DOES NOT ENCOMPASS EXTRA OR ADDITIONAL
PAYMENT FOR SPECIAL DUTY SUCH AS NIGHT WORK, OVERTIME, HAZARDOUS DUTY,
OR HOLIDAY WORK". IT STATES FURTHER THAT "CONDITIONS OF THIS SORT ARE
INCIDENTAL TO THE EMPLOYEE'S ASSIGNMENT AND THE LOSS OF THESE
DIFFERENTIALS IS CONSIDERED TO BE A PAY ADJUSTMENT RATHER THAN A
REDUCTION IN PAY." ADDITIONALLY, SINCE THE "FITNESS FOR DUTY"
EXAMINATION REQUIREMENT IS TRIGGERED BY THE POSSIBLE NEED TO REMOVE,
DEMOTE, OR INVOLUNTARILY RETIRE AN EMPLOYEE, THE FAA WAS NOT REQUIRED TO
GIVE THE GRIEVANT A "FITNESS FOR DUTY" EXAMINATION BEFORE IT COULD
TEMPORARILY REASSIGN HIM FOR MEDICAL REASONS.
BECAUSE THE ARBITRATOR'S AWARD AS WRITTEN SPEAKS ONLY OF "FITNESS FOR
DUTY" EXAMINATIONS, IT DOES NOT VIOLATE THE FPM. IT CANNOT BE READ,
HOWEVER, TO MEAN THAT THE PROTECTIONS CONTAINED IN FPM CHAPTER 339 AND
SUPPLEMENT 831-1 APPLY TO "RETURN TO DUTY" EXAMINATIONS, BECAUSE THEY DO
NOT.
IN A SITUATION WHERE THE FAA CONDUCTS A "RETURN TO DUTY" EXAMINATION,
AND BELIEVES THAT THERE IS SUFFICIENT MEDICAL EVIDENCE TO REMOVE,
DEMOTE, OR INVOLUNTARILY RETIRE A CONTROLLER, IT MUST THEN PROVIDE THE
CONTROLLER WITH APPROPRIATE PROTECTIONS, INCLUDING AN OPPORTUNITY TO
DESIGNATE AN ACCEPTABLE BOARD-DESIGNATED PHYSICIAN TO PERFORM ANOTHER
EXAMINATION. UNDER THESE CIRCUMSTANCES, SUCH AN ADDITIONAL EXAMINATION,
IF THE EMPLOYEE SO DESIRES IT, WOULD NOT BE REDUNDANT. IN LIGHT OF THE
ABOVE, IT IS OUR VIEW THAT THE ARBITRATOR'S AWARD IS CONSISTENT WITH
THIS STATEMENT AND THE FPM.
BASED UPON THE FOREGOING DECISION OF THE OFFICE OF PERSONNEL
MANAGEMENT, WE FIND THAT THE ARBITRATOR'S AWARD, IN THE CIRCUMSTANCES OF
THIS CASE, IS CONSISTENT WITH APPROPRIATE REGULATIONS.
CONCLUSION
FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2411.37(B) OF THE
AMENDED RULES OF PROCEDURE, WE SUSTAIN THE AWARD AND VACATE THE STAY.
/4/
ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1/ THE UNION'S POINTS 2 AND 3 PROVIDED:
2. THAT THE FAA SOUTHERN REGION INFORM ME BY LETTER THAT WHENEVER
FITNESS FOR DUTY PHYSICALS AND/OR PSYCHOLOGICAL EVALUATIONS ARE TO BE
REQUIRED OF ANY BARGAINING UNIT MEMBER THAT THE PROVISIONS OF THE
FEDERAL PERSONNEL MANUAL, CHAPTER 339, SUBCHAPTER 4, PARAGRAPH 1-3C, AND
CHAPTER 831-1, SUBCHAPTER 510 OF THE FEDERAL PERSONNEL SUPPLEMENT
PREVAIL AND THAT ALL BARGAINING UNIT MEMBERS WILL BE ACCORDED THESE
RIGHTS.
3. THAT WHENEVER A BARGAINING UNIT MEMBER IS REQUIRED TO UNDERGO A
FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION THAT THEY WILL BE
ADVISED OF THEIR RIGHTS UNDER THE REGULATIONS OF THE FEDERAL PERSONNEL
MANUAL IN THE INITIAL LETTER THAT THEY RECEIVE ADVISING THEM THAT THEY
MUST UNDERGO A FITNESS FOR DUTY AND/OR A PSYCHOLOGICAL EVALUATION.
/2/ ALL REFERENCES TO FPM MATERIALS DISCUSSED HEREIN ARE TO
PROVISIONS IN EFFECT DURING THE TIME COVERED BY THE GRIEVANCE, I.E.,
JULY, 1976.
/3/ FPM SUPPLEMENT 752-1 WAS ABOLISHED AS A RESULT OF THE CIVIL
SERVICE REFORM ACT OF 1978. THEREFORE, TO THE EXTENT OUR OPINION IN
THIS CASE IS PREDICATED ON FPM SUPPLEMENT 752-1, IT WILL NOT APPLY TO
CASES OCCURING ON OR AFTER JANUARY 11, 1979.
/4/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM ACT
OF 1978 (92 STAT. 1224), THE INSTANT CASE WAS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE MEANING OR
APPLICATION OF RELATED PROVISIONS OF THE NEW STATUTE OR THE RESULT WHICH
WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN UNDER THE
STATUTE RATHER THAN THE ORDER.